When you’re going to serve on the Court . . . for the rest of your productive days you accustom yourself to the institution like you do to the institution of marriage, and you realize that you can’t be in a brawl every day and still get any satisfaction out of life.

— Chief Justice Earl Warren (1972)

I have read my share of books on the Supreme Court and its history. But I have never read a book quite like Courtwatchers. Remarkably researched and engagingly written, this book (replete with twenty-seven pictures/photographs) is nothing short of a treasure trove of all sorts of wonderful, informative, rancorous, touching, and sometimes amusing stories about the Court, its history, and its personnel – the Justices, their families, the Court reporters, the clerks, the lawyers, the staff, the journalists who wrote about it, and all others who had business with the Esteemed Institution. It has been a long while since I read a book on the Court and learned so much . . . without nodding off. (I should say that I was similarly impressed years ago when I read a different kind of book by Elder Witt; I refer to her Guide to the U.S. Supreme Court.)

Clare Cushman, director of publications for the Supreme Court Historical Society, is the author. It is hard to imagine how such a work could have been done by anyone other than a person in the author’s position and with her vast knowledge of her subject, aided also by the Society. Given that Ms. Cushman has edited two weighty books on the Court (one a book of biographical profiles, the other on women and the Court), and in light of the fact that she isone of the editors of the Journal of Supreme Court History, she is superbly qualified to undertake this project – and it shows. If merit is the measure, Ms. Cushman is surely the person to do such a work. This book is certain to be mined time and again by future Court enthusiasts looking for either a fascinating anecdote or for some revealing fact about the Court and its history.

Not-so-august chambers

Laid out in thirteen thematic chapters, the many stories in Courtwatchers cover everything from the Court in its early years to the management and workings of the Court in more modern times. Among other things, there are chapters on the presidents and their nominees to the Court, the Justices’ spouses and families, lawyers who have argued before the Court (those “silver tongues”), the law clerks and their views of things, and the Justices in their final days. There are so many rich places into which to dig, but let me start by tunneling right into chapter 7, titled “Inside the Court,” a chapter devoted to the Court’s various housings.

The year is 1850 and the complaint is about the “dungeon-like” quality of the Court’s chambers located in the basement of the Capitol. “The death of some of our most talented jurists,” carped a friend of the Court, “have been attributed to this location of the Courtroom.” Sometime afterwards, Justice John Catron (who?) grumbled that he was “grievously annoyed by the dampness, darkness, and want of ventilation of the old basement room.” Things changed for the better by 1860, when the Court laid claim to the old senate chamber and changed again in 1935 when the Court, over Louis Brandeis’s strong objection, moved into its current marble home. Two more points before leaving this chapter: Those heavy drapes behind the Justices were originally installed to dim the echo effect of voices, and the current crescent shape of the bench was done in 1972 on the orders of Chief Justice Warren Burger, but over the objection of Justice William O. Douglas – he tagged it “as useless and unnecessary as a man’s sixth Cadillac.”

Mosquitoes, misogyny, exploiters & proselytizers

March 28, 1922: “I stepped out of a cloud of biting mosquitoes for a word of freedom with you. Now I go back to the swamp,” wrote Justice Oliver Wendell Holmes to Professor Felix Frankfurter. That was Holmes’s wily take on one of the Justices’ conference sessions. Such kinds of comments dot chapter 10, “(Not So) Good Behavior: Discord and Feuds.” Apart from a quote from Justice Harry Blackmun, the timeline for the chapter ends with stories up to 1975 and none beyond that. Nonetheless, the ones recounted are all-too-human snapshots of the Justices (a select few) at some of their worst moments. Here is a sampling:

Justice James McReynolds is reported to have implored President Hoover not to “afflict the Court with another Jew.” To the same effect, McReynolds “would hold briefs in front of his face when Cardozo delivered an opinion from the bench.” Beyond that, Ms. Cushman adds this: “Among his base impulses were misogyny (he would leave the bench in disgust if counsel was female).”

Ironically, Justice Felix Frankfurter once said this of his colleague Justice William O. Douglas: “Except in cases he knows it is useless or in cases where he knows or suspects that people are on to him, he is the most systematic exploiter of flattery that I have ever encountered in my life.” (FF said even worse things of Justice Hugo Black.)

Justice Douglas returned the favor: Frankfurter was “a proselytizer, and every waking hour vigorously prompted the ideas he espoused. Up and down the halls he went, pleading, needling, nudging, probing. . . . [H]e also indulged in histrionics in conference.” (Douglas declined to attend Frankfurter’s funeral.)

Related resources

For all of the very impressive research buttressing this book (thirty-six-plus pages of endnotes), one will look in vain for any real reliance on two books chock full of tidbits that might have been used in this work: (1) The Brethren: Inside the Supreme Court (1979) by Bob Woodward and Scott Armstrong (there is a lone and passing endnote reference to the book, which cautiously corroborates the reliance on it by reference to another work), and (2) Super Chief: Earl Warn and His Supreme Court – A Judicial Biography (1983) by Bernard Schwartz. That said, Ms. Cushman did draw on, and more than once, Closed Chambers: The First Eye-Witness Account of the Epic Struggles Inside the Supreme Court (1998) by Edward Lazarus (a book that certainly raised the eyebrows of the Court’s faithful).

Though the author draws on works published in 2010 (e.g., The Supreme Court: A C-SPAN Book, Featuring the Justices in their Own Words), it would have been helpful if one other important book published that same year was likewise available for her use – namely, Justice Brennan: Liberal Champion (Oct. 4, 2010)by Seth Stern and Stephen Wermiel. Of course, what is likely is that there was no time to incorporate references to this work given the book’s publication timetable, which allowed endnote references to works published as late as November 2010. (Perhaps to that same effect, the index does not refer to Justice Sonia Sotomayor, though she is mentioned in the text (p. 102) and in the notes (p. 277)).

All in all, if these are indeed oversights, they are of no great moment. A future edition, however, might be well-served to pay heed to what other resources might be tapped to improve the book’s already impressive array of reference materials (typically original sources at that).

Noble moments

The final few pages of the book recount, in moving detail, the last days of Justices Hugo Black and John Harlan, two men of very different constitutional persuasions. As the two elderly and gravely ill Justices awaited Fate’s final call at the Bethesda Naval Hospital, a teary-eyed Justice Harlan told Black’s son that he would wait for Hugo to retire before he did. “I don’t want to do anything to detract from the attention your father’s retirement will get.” And so it came to pass, Black stepped down and then Harlan “quietly retired six days” later. In much the same spirit, near the end of Courtwatchers there is a poignant photograph of eight Justices standing solemnly to pay their final respects to Justice Potter Stewart. The photo speaks volumes about the familial-like bonds of the Justices, their philosophical differences notwithstanding.

Funny, tender, witty, sharp, engaging, stinging, and instructive, it’s all there in this captivating scrapbook of stories that come alive between the covers of Courtwatchers.

Ronald Collins is the Harold S. Shefelman scholar at the University of Washington School of Law. In the interest of full disclosure, Mr. Collins notes that while he is a member of the Supreme Court Historical Society, he had no involvement with the book under review and does not know its author.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.